The Issues

The Defendant represented the Claimant in personal injury proceedings. The Claimant then sought an assessment of the Defendant’s bill of costs, which included an after the event insurance policy costing £644.

The Claimant raised a Part 18 request relating to the relationship between the Defendant and the ATE insurer, apparently seeking to ascertain whether any commission had been paid.  The Defendant refused to answer the request.  The Claimant made an application for an order that the Defendant do respond to his Part 18 request.  Neither party put any evidence before the judge at the hearing of the application.

Held

Costs Judge Rowley dismissed the Claimant’s application for an order that the Defendant respond to the Part 18 request.

Within his judgment, Rowley stated that “It is a basic tenet of litigation that he who asserts must prove. In the situation before me, the claimant’s position is that he does not even need to assert let alone prove a commission may be in issue. He simply has to say that the premium is disputed without putting forward any grounds for doing so.  But, in my judgment, there must be many situations where a party considers that an opponent has possibly caused him some loss but has no evidence as such. In the absence of any proof to support that suspicion, then proceedings cannot get off the ground…a pre-action disclosure application would need to have evidence of an
arguable case and that must be the sort of threshold to apply in respect of Part 18
requests…In the absence of any stated suspicion [that commissions were paid by the ATE insurer], let alone any evidence to support it, the general questions posed are a paradigm example of a fishing expedition.”

The full judgment can be found athttps://www.bailii.org/ew/cases/EWHC/Costs/2022/2848.html

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